Jurisdiction III Flashcards
What are the points to remember when raising an action?
You want to:
• Raise action in a court that has jurisdiction - to ensure the correct remedy - but also a enforceable decree, because if you haven’t got jurisdiction then what you have may not be enforceable otherwise trying to enforce decree abraod will be difficult.
• Raise action in the name of the right person - must think about who the party is: individual, company, partnership, other legal body, are they sueing in a representative capacity.
• Raise action against the right defender(s) - same issues concerning the type of legal person arise. What the defender is and where the defender is will affect the issue of jurisdiction.
May have to sue more than one defender - see later.
The classification of the defender is important as problems can arise as different jurisdictions characterise disputes in different ways and whether particular entities are corporate bodies or not, e.g. In England a partnership does not have separate legal personality.
You might also define disputes in different way, e.g. A matter in Scotland that is criminal may not be seen as such in Norway.
Civil Jurisdiction and Judgments Act 1982
main legislation
Incorporates into domestic law of various agreements between states
The format is such that there are schedules to the Act which set out the text to the various conventions: Brussels Conventions 1968 and 1999 and 1971 protocols and
Lugano Convention 1988
Council Regulation (EU) No. 1215/2012
Full list of conventions apple in the Act set out in section 1 of 1982 Act
What are the issues of jurisdiction?
So we live in a globalised world and in EU commerce deals with distinct rules where parties come from more than one member state so when they get involved in the dispute are able to identify quickly and easily and resolved that and where they are supposed to seek a remedy that is relatively easily identified.
What is the scope of the 1982 Act?
Scope of 1982 Act
Includes:
• Civil and Commercial Matters (Sch 1 Article 1) Does not include matters relating to:
• Crime – Revenue – Administrative law, or Status (whether married or not) - Wills and Succession – Bankruptcy – Winding Up of Companies – Social Security - Arbitration
Scope: civil and commercial matters • It does cover: • Contract • Delict • Property • Restitution • Agency • Insurance and Consumer Credit • Other areas are specifically covered by different international conventions - family law is the most important in relation to this. There are separate international conventions dealing with this and in family law habitual residence is the most important concept in terms of jurisdiction.
See allocation rules slide
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What are the basic rules of jurisdiction?
The first rules is that:
• Jurisdiction is most commonly (and easily) based on “domicile” of the defender - must be some link between the parties and the court or some link between the subject matter of the dispute, e..g if you have an accident in Aberdeen caused by a driver domiciled in Fraserburgh then no connection with Scunthorpe. So domicile concern a particular connection which one the parties has with the court and the foundation rule is that to be entitled to raise the action in the place where the defender is domiciled, e.g. If the pursuer is from germany and defender is domiciled in UK then you go to the UK > Wales > Etc. Follow the defender in civil and commercial matters.
• There are certain situations where there is concurrent jurisdiction - so in certain types of dispute jurisdiction does not arise only from domicile of defender e.g. Can rely on the place where the dispute has occurred or where the harmful event has occurred.
• Specific rules in relation to insurance and consumer contracts which allow flexibility. The idea here is that in these situations the person insured is entitled to raise the action where they live.
• In certain situations particular courts have exclusive jurisdiction - e.g. Where you cannot raise an action other than in the court which has exclusive jurisdiction.
What is prorogation and how is it effective?
• Parties can prorogate jurisdiction - e..g agree that a particular court shall haev jurisdiction. This is a formal agreement that a particular dispute arising from a particular contract shall be subject to a particular court in a given place.
Must allow parties to agree to litigate where it is suitable for them.
• Agreement that the courts in a particular place will have jurisdiction, irrespective of other connecting factors
• Schd 8, r 6
Schedule 8 of the 1982 Act. The agreement must be in writing or in accordance with an established custom or trade.
In order to be effective an agreement prorogating the jurisdiction of the Scottish courts should meet the rules as set out in:
6 (1) If the parties have agreed that a court is to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court shall have jurisdiction.
(2) Such an agreement conferring jurisdiction shall be either—
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
r 6 Schd 8 Civil Jurisdiction and Judgments Act 1982
How can the conventions be interpreted?
- Section 3 (1) 1982 Act –says “meaning and effect of the Brussels Conventions shall ….be determined in accordance with the principles laid down by and any relevant decision of the European Court “. So the courts in Scotland can look elsewhere for guidance on interpretation.
- Section 3 (3) of 1982 Act says - Reference may be made to Reports by Jenard, Schlosser, Evrigenis and Kerameus et al - so court should give such weight as is appropriate in the circumstances to this. This is an unusual feature. Refernce to these reports is not mandatory but you are entitled to make reference to them.
What are the rules determining domicile between EU member states?
As between EU member states
• Schd 1 of 1982 Act says– Subject to the provisions of this Convention, persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state. This is the primary ground of jurisdiction.
• It then says that you may be sued in other contracting states only if within a particular category of special jurisdiction as defined in the Convention - so the first port of call is the domicile of the defender. You also have a ground of jurisdiction if you can bring yourself within any of the other particular categories defined in the convention but in practice you look at domicile first.
What are the rules determining domicile within the UK?
As amongst the UK nations
• Schd 4 1982 Act – this is prefaced by a rule in the following terms but it says - Subject to the rules in this schedule, persons domiciled in a part of the United Kingdom shall be sued in the courts of that part.
• Persons domiciled in a part of the United Kingdom may be sued in the courts of another part of the UK ONLY if rules 3 to 13 apply.
Within Scotland - Schd 8 -“Subject to the following rules, persons shall be sued in the courts for the place where they are domiciled.” Domicile is again the predominant ground. So which of the various courts has jurisdiction, the court of session or sheriff court and which sheriff court.
What is the domicile of the defender?
• Definitions contained in sections 41 to 46 for a variety of natural and legal persons.
Must define what the defender is:
• Domicile of individual
• Domicile of corporation (inc. partnership)
• Domicile of trusts
• Domicile of the Crown
There are various rules for this.
What is the domicile of inidividuals?
- S 41 (6) – rebuttable presumption that if you are a natural person you are domiciled where resident for last 3 months
- S 41 (2) – “an individual is domiciled in the UK if and only if he is resident in the UK and the nature and circumstances of his residence indicate that he has a substantial connection”
- S 41 (3) and (4) same for part and particular place - so if living in a particular place for 3 months you are domiciled there
- See too s 43(2) of the Courts Reform (Sco) Act 2014 - makes further provision about jurisdiction over individuals in the sheriff court. Specifically if an individual is or has been resident for 40 days or an indivdual carries on business in the sheriffdom or has been cited there the court will have jurisdiction. The section also contains other provisions mirroring the 1982 Act.
What is the domicile of corporate bodies?
• Section 42 - says if you are “incorporated in UK and registered office or some other official address in the UK; or its central management and control is exercised in the UK” then you have your Seat in the UK and you are domiciled there.
• Companies, partnerships & others
• “Seat” = domicile
• So must establish whether a company is incorporated at an address in the UK.
But also central management in control - so for example if you have a company operated abroad and its main residence is abroad it is still regarded as being domiciled in the UK if its central management and control was exercised here. But this matter should be assessed and could be disputed. By contrast, this is more difficult to dispute where a company has its registered office here and carries out business here.
What is the domicile of bodies corporate?
• This has its Seat in part of UK if its seat in UK in the first place and its registered office or some other official address or its central management and control is exercised in that part of the UK or it has a place of business in that part of the UK.
This means that you can have a situation where potentially you have a place of business in one part of the UK And a registered office in another part and have more than one place of domicile.
• Seat in a particular place if have seat in part where place is situated and registered office in that place or central management exercised in that place or have a place of business in that place
Example: e.g. You could sue an english registered business if it has a place of business here. Lets sue M&S - the company has its registered office in England and exercises central management and control there as its head office but it has several places of business in Scotland and by virtue of these provisions it is domiciled not only in England by virtue of its registered office but domiciled in Scotland as its place of business and significant economic activity. So you could found jurisdiction on the basis of its presence in Scotland and in UK, so you can sue the company where it has a place of business and its registered office.
So there can be more than one place where a corporate body can be sued and there should be considered carefully any time there is a possibility of raising an action against such a corporate body.
